One of the first provisions to go into effect in the FDA’s deeming regulations is the prohibition on sales of vapor products to minors. While this provision was highly-anticipated, and arguably already enforced by a majority of vapor businesses, now that non-compliance is unequivocally illegal and subject to severe penalties, it’s important to know the extent of ensuring compliance and which resources are available to assist vape shops interested in exhibiting the most responsible business practices. Since the entire vape industry is being carefully scrutinized by those who may not mourn its fall, all vape-related businesses continuing to operate in today’s market should be aware of the unspoken contract they have entered: namely, requiring they be a positive reflection of the industry as a whole.
Both brick and mortar and online stores are required to prevent sales to minors, however where products are sold has implications for how the compliance process looks.
State-specific Age Verification Requirements
Most states have regulations in place for the minimum age to vape, and in many instances it is higher than the federal minimum of 18 years of age. It is crucial that every vape business is well-versed in its home state’s minimum age laws and verification requirements, especially because enforcement may go beyond denying purchases to underage customers. For example, my home state of California has specific Age of Sale warning sign requirements with compliant signage available from the California Department of Public Health. Be sure you are aware of, and implementing, your state’s specific requirements, which may also include licensing conditions for the sale of all “tobacco products.”
Age Verification for B&M Stores
At first glance, it may appear that brick and mortar stores are in a better position to comply with minimum age requirements. Since this is an issue of in-person sales, it seems more straightforward that any prospective customer under the age of 27 must show valid ID. However, compliance entails that each and every salesperson is correctly implementing the age verification requirements, which includes: knowing how to distinguish fake or invalid IDs from valid IDs, training to refuse an unlawful sale, and the monitoring of salespeople by management. This store-wide implementation is not to be taken lightly, as the FDA has reportedly already begun conducting compliance checks of vape stores, wherein minors are deployed to attempt to purchase vapor products; for in-store checks, the accompanying inspectors are not just supervising these minors, but also how the staff of vape stores handles or denies the unlawful transaction.
The FDA highlights the following four “effective steps to prevent violations of the minimum age requirements for the sale of tobacco products:”
1. Adopting and enforcing a written policy against sales to minors;
2. Informing employees of all applicable laws;
3. Establishing disciplinary sanctions for employee noncompliance; and
4. Requiring employees to verify age by way of photographic identification or electronic scanning device.
We Card, an award-winning non-profit organization, offers Responsible Retailing training programs and decals for vape stores, demonstrating to authorities (including the FDA) the seriousness with which a business approaches age verification and the prevention of sales to minors. Even if a vape store is not subject to state-specific age verification requirements, by showing authorities that a shop has done its due diligence, or, in this case, taking all possible precautionary steps to attempt the prevention of sales to minors, penalties for any infractions may be less severe.
Indeed, We Card highlights the FDA’s stipulation that a retailer’s implementation of the aforementioned preventative steps must be considered in determining whether to impose the FDA’s most severe penalty for sales to minors, which is a no-tobacco-sale order.
Age Verification for Online Stores
The fact that it’s potentially both more difficult and more expensive to verify the ages of e-commerce customers does not, of course, mean that online stores are exempt. In fact, many of the vapor businesses that have already been apprehended by the FDA are online stores. While the FDA has not advised how these business can ensure compliance, there is widespread agreement in the vape community that age verification software can significantly help prevent online sales of vapor products to minors. A few companies offering this service are BlueCheck, AgeChecker, Veratad and Electronic Verification Systems. It is important that vape stores contact these companies or others about their policies and capacity to check state age restrictions as well as the federal minimum age of 18. This is very important as some age verification extensions may simply check that the customer is of legal age according to federal regulations, which may be insufficient. While this option is not necessarily fool-proof, it does help demonstrate that a vape retailer has done its due diligence.
The FDA has already made the connection between underage sales and flavored e-liquids, the ban on which has already been loudly contemplated. As highlighted by Jim McDonald of Vaping360, following compliance checks of both brick and mortar and online stores, the FDA announced that “minors were able to purchase some of these newly regulated tobacco products in a variety of youth-appealing flavors, including bubble gum, cotton candy and gummy bear.” Again, the entire industry is being closely watched and responsible business practices are absolutely necessary for all entities operating therein.
Please note: this article attempts to offer advice as the result of independent research and does not qualify as legal counsel. Please consult with a qualified lawyer regarding your compliance implementation plan. SVBS
Sheerlie Ryngler is the Director of Operations and Creative Director for Vape Organics, the first certified organic e-liquid line. A native of Los Angeles, Sheerlie has traveled extensively, receiving her BA in International Relations and MA in Conflict Resolution. She has been a passionate activist for a number of causes around the world; for almost two years Sheerlie has focused her attention on the vape industry and believes that standards of excellence and commitment to progress are crucial to ensuring its continued success. You may contact Sheerlie at [email protected] or visit her website at www.pureorganicvapors.com.